Maneasi v Sori [2001] SBHC 168; HCSI-LAC 001 of 2000 (11 May 2001)

LAC No 001, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No 001 of 2000

JAMES MANEASI -v- CHARLES SORI SORI

Land Appeal Case No 001 of 2000
(Muria, CJ.)

Hearing: 7 May 2001
Judgment: 11 May 2001

A. Nori for Appellant
A. Readclyffe for Respondent

MURIA CJ: This matter has been listed following the ruling of this Court on 7 March 2001. The circumstances of this case are set out in that ruling. I need not repeat them here save to say that the case is an appeal against the decision of the CLAC (Central) (“the CLAC”) made on 19 October 1999. The appellant lost in the CLAC and now appeals to this Court. The grounds of appeal are set out in the Notice of Appeal and they are:

“1. The Court erred in law in overriding the decision of the Local Court in relation to the meaning and effect of the Gotitabu when it has no evidence before it to make such a decision. Having being confronted with such an issue of custom the CLAC was obliged in law to refer the matter to the chiefs or Local Court for determination;

2. The manner in which the CLAC membership was constituted contravenes the intention of section 254 and 255 of the Land and Titles Act which established the Local Court and CLAC as custom courts in that none of the members was from Gella Island, the area of the dispute - this factor reinforces ground of Appeal 1 herein.”

I merely set out those grounds of appeal. I will not deal with them in this hearing as the main issue in this particular hearing concerns the exercise of the Court power upon non-compliance with 0.60A r5 of the High Court (Civil Procedure) Rules. That provision provides as follows:

“5. The appellant shall within fourteen days after filing notice of appeal or paying the appeal fee, whichever is the later, deposit in a Magistrate’s Court a sum of money sufficient in the opinion of the clerk to cover the expense of making up and forwarding the record of appeal, and shall also deposit a sum of money or give security therefor by bond with one or more sureties to the satisfaction of the clerk sufficient in the opinion of the clerk for the payment of any costs which may be ordered to be paid by the appellant. Such bond shall be in Form No. 52 of Appendix B.”

In my ruling on 7 March 2001, I held that the appeal was brought within time as required by s.256 (3) of the Lands and Titles Act as the notice of appeal together with the appeal fee were lodged on 12 January 2000 with the Clerk to CLAC. Receipt for the appeal fee (GTR No. 8740260) had been issued.

The record shows that having lodged the appeal, the appellant had paid the appeal fee of $500.00 and costs of preparation of records of $90.00 (GTR No. B749470). However, the payment of deposit of security for costs has yet to be made. It is the non-payment of that deposit security for costs that concerns us in this case.

Mr. Nori contends that the non-payment of the deposit for security for costs is not fatal to the appeal. Apparent from Counsel’s contention is that as long as the Court fee and cost of preparation of the appeal record are paid, then this Court should still proceed to hear the appeal.

Mr. Radclyffe, on the other hand contends that payment of deposit of security for costs is critical under O.60A r5. It is so critical to be complied with that if for any reason the appellant is not able to fulfil that requirement, the appellant must take the necessary steps of informing the Court of the reasons for being unable to comply with the requirement of r.5 within the time limit and seek appropriate order. In the absence of such steps taken, the Court is bound to exercise its power in favour of strict compliance with the terms of the rules.

When one looks at Rule 5 of O.60A, it will be observed that the requirements of payment of cost of preparation of record and deposit of security for costs are couched in mandatory language. So much so that if those requirements are not complied with, then Rule 6(2) states that it shall not be necessary for the Clerk to the CLAC to prepare the record of appeal with the consequence that the appeal cannot be brought before this Court for determination. So it is critical that the requirements under Rule 5 be complied with including the deposit of security for costs be paid within the time limit.

A question may be asked: What if an appeal is lodged within time with the appeal fee and cost of preparation of the record paid but not the deposit of security for costs, and the appeal was found to be without any merit or frivolous and vexatious? The respondent must in such a case be able to be compensated for the unnecessary costs of having to defend such an appeal. It makes sense, as Mr. Radclyffe contends, that the requirement of Rule 5 of having the security for costs deposited in Court, be complied with to guard against such an appeal being brought. Todate no application has been brought by the appellant seeking to comply with the requirements of Rule 5 outside the time therein set nor has the payment of deposit of the security for costs into Court been done since June 2000. This must also be an added factor forming part of the Court’s consideration in this matter.

I bear in mind also the contention by Counsel for the appellant that the circumstances in the country between June and December 2000 had prevented the appellant from reaching his solicitors to follow the matter up. Whilst the Court can accept that the circumstances were not conducive for him to come to Honiara during that period, it is also to be noted that the appeal was lodged on 12 January 2000. Between January and June 2000, there was a lapse of almost than five months and nothing had been done by the appellant or his solicitors to comply with Rule 5 of 0.60A.

Taking the total circumstances surrounding the institution of this appeal, I feel this is one in which the appellant had been very indisciplined as to become indifferent to the requirements of the rules. The appellant and moreso, his legal representatives must take heed of the warning given in Reef Pacific Trading Limited -v-Island Enterprises Limited (1995) Civ. Appeal No.1 of 1992 (CA) (Judgment given on 31/8/95) where the Court of Appeal stressed that the indiscipline of indifference to procedural rules and orders must be avoided.

This, in my view is what happened in this case and in the circumstances this appeal must be struck out.

Costs of the last hearing on 7 March 2001 and this hearing must be paid by the appellant to the respondent.

(Sir John Muria)
CHIEF JUSTICE